one case, four hypotheses and one sincere worry (on the ...one case, four hypotheses and one sincere...
TRANSCRIPT
One Case, Four Hypotheses and One Sincere Worry (On the Subject of Constitutional Justice in Mexico)
Pedro Salazar Ugarte
Introductory Note
In The Constitution in Conflict, Robert A. Burt conducts a broad and thorough study of the
judgments of the Supreme Court of the United States, a study that has no parallel in
Mexico. That was the first thing that came to my mind while reading the book and trying
to connect its observations with the Mexican constitutional experience. To some extent this
essay is the product of those reflections. What is paradoxical, though, is that although the
essay was triggered by Burtâs text it is unfaithful to his thesis. And not because it fails to
find eminently reasonable its exhortations that judicial intervention should be:
â... A particular, limited and careful intervention circumscribed by great moral condemnation of the disrespect of majorities towards a vulnerable minority, always taking into account the principle of equality.â
This is a worthwhile thesis, and it has inspired many constitutional studies on the
legitimacy of judicial action. However, it points in the opposite direction from theories that
account for the existence of a jurisprudence worthy of analysis, like that of the U.S. Court.
Those theories, the backbone of this work, are the antithesis of the following warning by
Burt, and at the same time, the reason why his book exists:
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âThis is what judges should do, not great moral and philosophical interventions in an interpretive sense or surrendering to the will of majorities. After all, judges are lawyers, not philosophers. They are lawyers whose function is to unravel complex cases in simple, analytical statements and to take into account the consequences of their decisions. The decision must be historically, psychologically, and philosophically informed.â
I. An Interesting Discussion
In February 2007, an intense debate took at a plenary session of the Supreme Court of
Mexico (SCJ). The justices discussed whether it was appropriate to grant a legal remedy
(juicio de amparo) to 11 soldiers who had been discharged from the military for carrying
the HIV virus. The core of the dispute was whether an article of the Law of the Social
Security Institute for the Mexican Armed Forces - Art. 266 - was unconstitutional.
That article provided that one of the possible reasons for discharging a military officer was,
precisely, contracting the virus. The (ex-)military complainants who had appealed to the
courts argued that the article was discriminatory. Clearly, neither the underlying issue nor
the stakes of the decision were of minor importance. But what I would like to point out
here is not the substantive core of the issue but a procedural question that required a
response from the justices before they could reach the final decision.
The specific point in dispute was whether judges could and should take into account, as a
probative element on which to ground the decision, an opinion issued by the Mexican
Academy of Sciences (AMC) providing scientific information on the risks and
consequences of carrying the HIV virus. Scientistsâ opinions had been requested by one of
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the justices (Justice CossĂo) but, according to some of his colleagues, could not be taken
into consideration because the current Law of Amparo established that at the review stage
of trials of this kind, the Court could only assess evidence presented by the parties before
the first authority (the trial court judge) that had heard the case (Article 91, II). In other
words, the case file was âclosedâ by the time it reached the Supreme Court and accordingly,
justices could only review the information already therein contained.
Obeying the law literally and scrupulously, then, meant that the doctorsâ opinion had to be
ignored (even if it provided valuable information for the applicants, the former officers).
On the other hand, a rights-protecting (âgarantistaâ) interpretation of this and other laws
could allow for the conclusion that the relevant article of the Law of Amparo might close
the case for the involved parties but not for Court justices. Given that the scientific
information contributed information useful for resolving the case, the opinion of the
Mexican Academy of Sciences could and should be taken into account.
One of the justices with a long career on the bench, Mariano Azuela, took the first position,
while the only justice at the time who came from the academy, Jose RamĂłn CossĂo, took
the second. It is worth discussing the crux of their arguments. In the plenary session of the
Court during which discussion of the question began,1 Justice Azuela warned:
âAre we going to afford greater protection (un amparo mayor) because other problems are examined? Isnât it a merely academic change that is being proposed (if scientific opinions are accepted as evidence)?â2
1 Session of February 26, 2007. 2 Emphasis added.
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Days later, when the issue was voted on,3 Justice Azuela again elaborated on his concerns:
â . . . We have been very loose in applying this concept . . . what I find odd is this, the paradoxical situation in which in a case of fundamental rights case we forget one of the basic rules and basic principles of rights protection (amparo) . . . â
As can be inferred, his concern lay in the risks, for the task of a judge, of sacrificing the
strict application of the law â in this case for a particular procedural exception - in the
interests of a theoretical and largely bookish conception of constitutional justice. His
reference to the academic leanings of the opposing position is symptomatic and interesting.
Some months later, in an article aimed at an academic audience, Justice CossĂo explained
the core of the opposing position he had defended and eventually adopted:
âIt would be absurd if, in cases in which review of the particular statute at issue and the relevant constitutional provision cannot be undertaken without a thorough understanding of technical issues, the judges were not allowed to obtain such information. To suggest that in showing interest in such relevant information, the Supreme Court is delegating the decision of a normâs constitutionality to specialists is to misunderstand the nature of law and the characteristics of the judicial role.â4
Needless to say, Justice CossĂo had, in effect, privileged the usefulness of accessing and
weighing the information provided by the Mexican Academy of Sciences over the
procedural factors that prevented its consideration. The debate was long and heated and in
the end, the Court held in favor of the officers. Beyond that result, however, what interests
me is to note that the discrepancy between the two judges suggests very different, very
distant rationales and legal conceptions. 3 Session of March 1, 2007. 4 CossĂo, J. R., âMilitares con VIH: contra la discriminaciĂłnâ in Nexos, 354, June 2007, pp. 26-27.
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To use academic categories, we can say that Justice CossĂo leaned toward what some
authors â SĂĄnchez, Magaloni and Magar â refer to as âlegal interpretativism,â while Justice
Azuela stood firm in his âjudicial legalism.â5 Judges like CossĂo âbelieve that courts ought
to expand their jurisdiction by overturning precedent that limits the role of the judiciary . . .
and take into account the political, social and economic consequences of their rulings.â6
Judges like Azuela, however, âgive primary weight to a limited interpretation of both the
courtsâ jurisdiction and the rules for standing and are skeptical of the ability of judges to
base their decisions on non-juridical reasoning.â 7 These thinkers â whom, following
Karina Ansolabehere, we can call âlegalistsâ 8 â favor literal interpretations of the
constitution and laws while the former, who can also be called âguarantistsâ â are inclined
toward broader interpretations.9
II. Classifying to Clarify.
Behind the trend toward âjudicial legalismâ or âlegal interpretativismâ are very
conceptions of the rule of law. Josep AguilĂł Regla â through a different methodological
approach to the empirical study of Sanchez, Magaloni and Magar âproposes two sets of
variables that encapsulate both models of the judicial mentality.
5 See, SĂĄnchez, A., B. Magaloni, E. Magar, âLegalist vs. Interpretativist: The Supreme Court and the Democratic Transition in Mexicoâ, Stanford Public and Law Working Paper, 1499490. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1499490## 6 Ibid., p. 4. 7 Ibid. 8 Ansolabehere, K, âLegalistas, legalistas moderados y garantistas moderados: ideologĂa legal de maestros, jueces, abogados, ministerios pĂșblicos y diputados,â Revista Mexicana de SociologĂa, 70, No. 2, April-June 2008, pp. 331-359. 9 SĂĄnchez, A., B. Magaloni, E. Magar, âLegalist vs. Interpretativist: The Supreme Court and the Democratic Transition in Mexicoâ, p. 33.
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The first model consists of the following components: a) emphasis on the rule of law; b)
attachment to the legislative rule of law; c) emphasis on formal legal reasoning; d)
adoption of a rule-based model of interpretation [subsumption]; e) defense of a judicial
ethos according to which legal reasoning must close off moral reasoning; f) fear of a loss
of value neutrality [impartiality being equivalent to neutrality]; g) fear of subjectivity [only
the law is objective]; h) judicial restraint and a fear of the imposition of moral relativism; i)
fear of chiaroscuro [that is, of a gradual loss of certainty].10
The second view, on the other hand, combines the following elements: a) emphasis on
protecting rights; b) attachment to the constitutional rule of law; c) emphasis on
substantive legal reasoning; d) adoption of a model of interpretation that is rule-based
[subsumption] but also principles-based [balancing]; e) an applied judicial ethos [legal
reasoning is a case in which general practical reasoning and moral reasoning coincide]; f)
recognition that applying the law involves making assessments, so that impartiality is not
to be confused with neutrality; g) use of rationality as intersubjectivity; h) avoids confusing
submission to the law and self-restraint with the moral irresponsibility of the judge; i)
avoids confusing a ânon-arbitraryâ judge with a âritualisticâ one.11
The classification scheme is ambitious and inevitably schematic, but I think it is useful. In
fact, it is not difficult to situate Justice Azuelaâs arguments in the first model and those of
Justice CossĂo in the second.
10 See, AguilĂł J., âĂtica Judicial y estado de Derechoâ en GarcĂa Pascual, C., El Buen Jurista. DeontologĂa del Derecho, Tirant lo Blanc, MĂ©xico, 2013, p. 82. 11 Ibid.
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III. Some Pertinent Questions.
The debate between Azuela and CossĂo and the classification proposed by AguilĂł raise
some questions. I can think of at least the following: a) Is there a significant difference
between the work of an âordinaryâ trial court and that of a constitutional court?; b) Is it
necessary to apply a different decision-making framework in each case?; c) If so, are these
frameworks incompatible?; d) Does it make sense to distinguish between academic judges
and technical judges?; e) Does each of the two models of the rule of law â legislative and
constitutional, respectively â require a specific kind of judge?; f) Can judges who operated
in authoritarian systems continue to serve in democratic and constitutional contexts?
IV. Approaching and Delineating the Scope of the Question.
In these next pages, I offer some theoretical premises for answering these questions. I avail
myself of some quotations from authors who have studied these issues to show that there is
a tendency to distinguish between constitutional justice and ordinary justice that goes
beyond the technical and jurisdictional questions.
The strategy I have adopted has been to review relevant literature to highlight a few (more
or less) categorical assumptions by experts. In so doing, I have avoided the temptation to
pontificate myself, and have left it to them to provide the materials for analysis. As we will
see, these materials consist of axioms that complement the second model proposed by
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AguilĂł and which sketch out a profile of âguarantistâ judges, to use Ansolabehereâs
terminology.
With these principles as a guide, towards the end of the text I will problematize the current
situation in Mexico where, as will be explained, a trend towards the decentralization of
constitutional review is being witnessed. My reflections in the concluding paragraphs are
based on some constitutional and institutional changes in the administration of justice and
only on very few empirical references to culture or judicial behavior. The reason is that
socio-legal studies of judgesâ behavior in Mexico are few in number, and those that exist
focus on the Supreme Court and the Electoral Tribunal.12
V. Four Hypotheses for Examining the Topic
Hypothesis No. 1: âThe lower court (ordinary) judge cannot be a judge of
constitutionality.â
Consider the following idea from Louis Favoreu, which I have found cited more than once
in articles on these topics:
âConstitutional courts, unlike ordinary courts, are not composed of career judges who have ascended to their posts as a result of regular, progressive promotions. The appointment of constitutional court judges does not follow
12 See, RĂos-Figueroa, âSociolegal Studies in Mexico,â Annual Review of Law and Social Science, Vol. 8 (2012), pp. 307-321. Available at: http://works.bepress.com/julio_rios/11
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traditional criteria, [and] judges tend to have very similar backgrounds, their main common feature being the large proportion of university professors.â13
Along these lines, Otto Bachof declared in 1959:
âThe task, laden with responsibility, of normative constitutional interpretation and protection of value systems requires a special application of these questions, and demands individuals with considerable expertise in problems of law and constitutional practice, experience that no lower court judge has, or can have. . . .â14
In the background of these statements two plot lines unfold: a) it is assumed that modern
constitutional orders are substantively different from those belonging to the so-called
âlegalâ or âlegislativeâ rule of law (I will return to this point below); and b) as a corollary,
it is assumed that the new model requires (constitutional) judges with particular
characteristics that ordinary, lower judges cannot meet, not least because they are used to
operating according to the logic of strict legal foundations and applications.
This last argument carries with it a pejorative assessment of ordinary courts, which are
often described as legalistic and labeled as traditional, and extols the mission of
constitutional judges. At the same time, it implies and presupposes a particular conception
of the latter, one which, according to Favoreu, finds particularly fertile soil in university
classrooms.
13 Cited in FernĂĄndez de Cevallos, D., âEl juez constitucional como elemento de transformaciĂłn democrĂĄticaâ in XXXXXX, pp. 67-68. The author cites a webpage that could not be opened. 14 Cited in FernĂĄndez de Cevallos, D., âEl juez constitucional como elemento de transformaciĂłn democrĂĄticaâ in XXXXXX, pp. 67-68. The author cites a webpage that could not be opened.
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Hypothesis No. 2: âThe constitutional rule of law is different from the legislative rule of
law.â
Already implied in the previous hypothesis, this thesis has been vigorously defended by
Luigi Ferrajoli. For this author, the constitutional order of the second half of the twentieth
century15 was substantially different from those prevailing during what Ferrajoli himself
calls the legislative or classical positivist paradigms. The incorporation of fundamental
rights in constitutional charters, along with the subjection of the legislature to these norms,
denotes a change of paradigm carrying with it not only a legal transformation, but also a
political shift from different forms of autocracies (absolutist in varying degrees) to
constitutional democracies. The basic thesis â which is supported with empirical data â is
that legal orders underwent a structural change and that this change has implications for all
legal actors. In particular, according to this theoretical model:
âJudging is no longer the subjection of the judge to the law, but now also consists in a critical analysis of [the lawâs] contents in order to verify its constitutionality.â16
This structural change demands a new type of constitutional judge. At least, that is what
Perfecto AndrĂ©s Ibañez â Spanish Supreme Court Judge, eminent jurist, and devoted
Ferrajolian â believes:
15 Ferrajoli is thinking primarily of Europe, but the thesis applies to practically all Latin American countries in the last decade of that century. I distinguish between Latin American constitutions approved or reformed in the decade of the â90s and the so-called âNew Latin American Constitutionalism.â See, Salazar, P., PolĂtica y Derecho. Derechos y GarantĂas. Cinco ensayos latinoamericanos., Fontamara, MĂ©xico 2013. 16 Ferrajoli, L., Diritti fondamentali, Laterza, Roma-Bari, 2001, p. 36.
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âThe existence of multiple tribunals in new . . . normative environments more open to the interplay of principles and the use of judicial discretion, brought with it the opening of an unprecedented new space for the development and exercise of a certain cultural autonomy on the part of judges, which also translated into . . . a different relationship between the judge and the law and greater visibility of what Ferrajoli called the judgeâs âpower of discretionâ (el poder de disposiciĂłn) in the act of applying said law . . .â17
The core of the argument can be summarized as follows: changes to the structure of legal
orders require judges capable of operating with a constitution of principles, one capable of
many controversial interpretations.18 The lower court judge schooled in the premises of
positivism, legalism and formalism, is not capable of performing this task. It is also what
Ronald Dworkin also argued when asked if judges had to be philosophers:
âJudges must understand that the convenient shortcuts we have just considered (intuitionism and pragmatism, as well as formalism) are illusions, which means judges have to choose between competing principles that are available to explain the constitutional concepts, and also have to be ready to present and defend the choices they make.â19
What is clear is that not every judge can take on this delicate and complex task. The risk, at
least according to Francisco Laporta, is that âjudges (act) on the basis of an open moral
reasoning, which makes them feel, however, as if they were applying the law.â 20 The
17 Ibañez, P. A., âĂtica de la independencia judicial,â in El Buen Jurista. DeontologĂa del Derecho, Tirant lo Blanch, MĂ©xico 2013, p. 33. 18 See, Ferreres Comella VĂctor, Justicia constitucional y democracia. Madrid, Centro de Estudios polĂticos y constitucionales, 2007. 19 Dworkin, R., âÂżDeben nuestros jueces ser filĂłsofos?, ÂżPueden ser filĂłsofos?â in Estudios de Derecho, No. 144, Diciembre de 2007, p.. 20 Francisco Laporta, âImperio de la ley y constitucionalismo. Un diĂĄlogo entre Manuel Atienza y Francisco Laporta,â in El cronista, No. 0, Madrid, October 2008, cit., p. 49.
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problem, then, is that lower court judges are not prepared for this task because âmoral
reasoning is simply vulgar.â21
If the above is true, we our witnessing a historic change of legal models that requires a
change in judicial work that cannot be performed by just any judge or through traditional
methods of legal interpretation and application.
Hypothesis No. 3: âThere are judges of law as well as judges of rights.â
Another way of looking at the question leads us down the path of judgesâ ideology and
legal culture. That is the path sketched out by the following reflections by Luis GonzĂĄlez
Plascencia:
âThe current context is culturally, economically, socially, politically and legally different from any other period in history and therefore presents special conditions for legal practice in general and the work of courts in particular. [Therefore, we require not only a judge trained] in the law but in rights[,] . . . sensitive to social circumstances . . . , with an elevated notion of justice that, always grounded in the law, is consistent with fidelity to procedural truth and the safeguarding of constitutional values.â22
The first part of the argument â which the author develops with in Mexico in mind â is
extremely fragile because it is difficult to maintain the existence of âcontextsâ totally
different from the previous historical moment. Sociologists and historians are well aware
21 Ibidem. Perhaps aware of this, Ronald Dworkin asks himself if judges can or should be philosophers (to which he responds in the affirmative). See, Dworkin, R., âÂżDeben nuestros jueces ser filĂłsofos? ÂżPueden ser filĂłsofos?â, en IsonomĂa, No. 32, April 2010, pp. 7-29. 22 GonzĂĄlez Plascencia, L., âLa formaciĂłn de los juzgadores federales en MĂ©xicoâ, revista XXXXX del IJF, MĂ©xico, pp. 153-154, 163. Emphasis is mine.
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that, as radical as social transformation may be, there always exists a continuum between
one phase and another. But the quote is still useful because in the second part of his
argument, the author introduces a theme not present in the previous hypotheses. The
argument suggests that judges should have an ideological commitment to the human rights
agenda.
This line of argument goes beyond arguing that, given the paradigm shift (from the âlegal
stateâ to the âconstitutional stateâ) and the peculiarities of new legal orders, judges who
know both legal doctrine and legal theory are necessary.23 Nor does it merely state that
interpreting constitutional principles requires knowledge of normative ethics or even meta-
ethics and that judges âmust be aware of the task they perform and the political, economic
and social effects that their decisions may have.â24
In fact, the ideological argument goes further because it demands that constitutional judges
be committed to the cause of rights, a commitment which, at least according Jorge Malem,
was not required under the paradigm of the âlegislative stateâ:
âFrom a technical point of view, then, it would not be true that to be a good judge it is necessary above all to be a good person irrespective of oneâs mastery of the law; in fact, it would be enough to be sufficiently familiar with the legal techniques for identifying the legal rules governing the case to be decided . . . without it being necessary to be a paragon of ethical and social virtues. A bad person actually could, in this sense, make a good judge.â25
23 See, Malem, J., El error judicial y la formaciĂłn de los jueces, Gedisa, Barcelona, 2008. 24 Malem, J., El error judicial y la formaciĂłn de los jueces, FundaciĂłn Coloquio JurĂdico Europeo, Madrid, 2009, p. 114. 25 Malem, J., âÂżPueden las malas personas ser buenos jueces?â in XXXXXX, IIJ-UNAM, XXX, p. 145.
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From the paradigm of the constitutional state, however, the view looks different. Malem
himself â in a nice article that asks precisely whether bad people can be good judges â
concludes that in the constitutional state, judges must be committed to what he calls a
particular âcritical morality,â that is, a morality pertaining to a liberalism of rights and
corresponding precisely to the paradigm of a human rights-oriented constitutionalism.
Therefore, in the contexts in which this paradigm is valid, âbad peopleâ (those who turn
away from or fight the principles underlying this particular morality) cannot make good
judges. The thesis is full of philosophical implications because it means that there must be
an alignment between a certain axiological agenda, positive legal norms, and the personal
convictions of the judge. I will not stop to analyze this aspect of the hypothesis but I
thought it relevant to mention it.
Hypothesis No. 4: âJudges in authoritarian systems cannot be judges in a democracy.â
The last hypothesis has a close connection with the previous one, but it highlights a
commitment to rights constitutionalism from a political and historical perspective. The key
question lies in determining whether judges operating in authoritarian political contexts â
and who, therefore, executed the legal rules under which said regimes operated â can be
judges of constitutionalism in democratic times. This question applies particularly to lower
courts but we can assume that, in authoritarian contexts, there were no real judges of
constitutionality. Accordingly, the question can be split into two questions: a) whether
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lower court judges under authoritarianism can continue to operate in democratic contexts;
b) whether those judges can aspire to become constitutional judges.
Jorge Malem takes up the core of the dilemma with Spain in mind:
âOr is it possible that judging is a sector of state institutions and practices immune or indifferent to contextual characteristics and political time? Could a system proven so efficient at mass producing and reproducing the sort of judge who, culturally and politically predisposed to subordination, executed with such ease the judicial policies of the Franco dictatorship and other dictatorshipsâcould that system be functional in a constitutional democracy?â26
The same argument, now thinking of Latin America, has been raised by Ana Laura
Magaloni:
âJudges and lawyers tend to repeat learned behaviors and to reproduce ways of thinking and interpreting legal rules even if the context in which they operate changes. The resistance to change of the institutions of the judiciary is enormous. This explains why late twentieth-century democracies â including Mexico â have found it enormously difficult to ensure that changes to the political regime are accompanied by changes of the same magnitude in the legal sphere. While it is true that democratic transitions have resulted in the creation and reform of a number of legal norms and institutions â starting with the Constitution â the legal profession, which is responsible for operationalizing these standards, has been formed in the shadow of authoritarianism. Its ways of understanding the law, of conceptualizing the judicial function, and of conducting legal reasoning, are bound up with what worked in the old regime.â27
26 Malem, J., El error judicial y la formaciĂłn de los jueces, FundaciĂłn Coloquio JurĂdico Europeo, Madrid, 2009, p. 129. 27 Magaloni, A., âInercia del pasadoâ, Reforma, 5 de octubre de 2013 (
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On this view, then, beyond technical-juridical considerations are cultural and ideological
considerations favoring the replacement of holdovers from authoritarian regimes with new
judges committed to democracy.
VI. Is the constitutional justice model relevant?
The topic of different traditions of constitutional justice â American and Continental âis
already a classic in the contemporary debate and has a deep connection to the present case.
Hence it is necessary to touch on it briefly before examining the current situation in
Mexico through the lens of our four hypotheses. As Roberto Saba has observed, it is true
that:
â. . . The expectations each tradition has about the judicial function, about the role and responsibilities of legislators, about the role that should be played by the legal academy and even about the proper place of citizens themselves, are very different.â28
What interests us here is the different view of the role of the judiciary that characterizes
each model. We often hear that the continental model aspires to have judges who are
expert in the law, technically sound and politically neutral, while the American model is
committed to virtuous judges who are skilled in law but also tap into other sources of
knowledge â even moral â at the moment of deciding. This hard-and-fast distinction is an
oversimplification, but it allows us to align the different judicial profiles â according to
each model of constitutional justice â with the classifications proposed, following Josep
AguilĂł, at the start of the essay and to examine them in light of the reconstructed 28 Saba, R., âConstituciones y cĂłdigos: Un matrimonio difĂcil,â nimio.
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hypotheses. The first corresponds to the âlegalisticâ judge; the second to the âguarantistâ
judge.
However, a careful look reveals that the difference between the two models lies not in the
profile of the judge each prefers so much as in the task with which judges are entrusted.
Put differently, the profile depends on the function. This is the thesis implicit in the
following claim by Mauro Cappelletti:
âJudges in continental Europe are usually âcareerâ magistrates unfit to conduct judicial review of laws, a task which, as we shall see, is inevitably creative and goes far beyond their traditional role as âmere interpretersâ and âloyal servantsâ of the law. The very act of interpreting constitutional norms and especially the core of these norms in a declaration of fundamental rights or âBill of Rights,â is often very different from interpreting ordinary laws. It requires an approach that meshes poorly with the traditional âweakness and timidityâ of the judge in the continental model.â29
The difference is not in the model of constitutional justice adopted but rather in the task
entrusted to judges. Because in the (North) American context the work of constitutional
review is performed by all judges (a decentralized model of review), it can be assumed that
their profile is different from that of the lower court judge in continental Europe (where the
model of concentrated constitutional review predominates).
29 Cappelletti, M, Cours constitutionnelles, XXXX, p. 463 (Cited in Monroy Cabra, M., âNecesidad e importancia de los tribunales constitucionales en un Estado social de Drecehoâ, Anuario de Derecho Constitucional Latinoamericano, IIJ-UNAM, 2004, p. 30.)
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At any rate, in all cases â and this is what matters for the purposes of this text â
constitutional judges are called upon to be more than just legal technicians and so must
comply with the aforementioned hypotheses.
VII. The Great Mexican Mess
Studies of the Mexican judiciary tend to focus on the Supreme Court of Justice or, at most,
the Federal Electoral Tribunal. This is a result of the fact that, since 1994 and up to very
recently, Mexico had adopted a model of concentrated constitutional control. In fact, only
since 2007 has the Supreme Court had to share the power to review the constitutionality of
laws with the Electoral Tribunal.30 Therefore until very recently, it only made sense to ask
whether Supreme Court justices and judges from the Electoral Tribunal acted according to
the hypotheses reconstructed in this work and therefore whether they were âlegalisticâ or
âguarantist,â to use Ansolabehereâs terminology. This is Julio Rios Figueroaâs claim:
âIn part as a response to the shortcomings of political science work on the Supreme Court, legal scholars have begun to produce systematic jurisprudential lines on specific topics as sexual and reproductive freedom (Madrazo and Vela 2011), criminal due process rights (Magaloni and Ibarra 2008), taxing capacity of the state and the just imposition of fiscal burdens (Elizondo and Perez de Acha 2006), and whether the court uses a gender perspective when deciding certain civil matters (Pou 2010). Of course, legal scholars are carrying out this novel (for Mexico) work because of the increasing importance of Supreme Court jurisprudence for policies and
30 Issues like constitutional controversies and motions of unconstitutionality can only be heard by the Supreme Court and, while amparo motions have always been heard by lower court judges, the Supreme Courtâs interpretations of the Constitution have always been binding on all judges. As for the Electoral Tribunal, its history is interesting because it was the Court itself that had denied it the power to perform constitutional review, so these powers had to be granted to it by constitutional reform. I will not discuss the Electoral Tribunal here, but for an analysis of the topic, permit me to cite to my own work, Garantismo espurio (FundaciĂłn Coloquio JurĂdico Europeo, Madrid, 2009).
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politics. In addition to the specialized knowledge on each topic, perhaps the central lesson of these studies is that the Supreme Court is building quite slowly, and in disparate and not always consistent ways, its understanding on how and when fundamental rights should be protected. An underlying, and not always explicit, explanation for the unsteady jurisprudential construction is the traditional legal training, and socially conservative ideology of some of the Justices.â
Along these lines, after an empirical analysis of the most important decisions of the
Mexican Supreme Court (SCJ) from 1994 to 2007, the aforementioned study by Sanchez,
Magar and Magaloni concludes:
â. . . The majority of the time, especially in cases of constitutional controversies, a âlegalistic blocâ has dominated the Court.â31
Similarly, points out Julio Rios, making reference to this study:
âOne central lesson from political science that works on the Mexican Supreme Court is that, since 1994, it has become an effective and quite neutral arbiter of political conflicts, though its record on protecting fundamental rights has been much less successful.â
It has been several years since this study was completed and, quite apart from the empirical
evidence supporting it, I think it is fair to say that things have changed only slightly. In
recent years there have been five newly appointed Supreme Court judges32 (out of the
eleven that make it up) and gradually, a âliberalâ bloc (as constitutional judges themselves
call it) of five justices has consolidated against a âconservativeâ bloc with six members.
31 SĂĄnchez, A., B. Magaloni, E. Magar, op. cit, p. 6. 32 Arturo ZaldĂvar and Luis MarĂa Aguilar entered in 2009, JosĂ© MarĂa Pardo Rebolledo in 2011 and Alfredo GutiĂ©rrez Ortiz Mena and Alberto Gelasio PĂ©rez DayĂĄn in 2012.
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Two of the new ministers aligned themselves with the first group while the three others
reinforced the conservative bloc.
One interesting fact is that the distinction between the two groups does not necessarily
correspond to the cultural or ideological agenda of the constitutional justices.33 That is, it
does not necessarily revolve around the last two hypotheses analyzed here. What
distinguishes the justices is, above all, their conception of the rule of law and the way in
which they approach the judicial role. The debate between Azuela (who left the Court in
2009) and CossĂo provides a good illustration of this divide. In fact, it should be noted that
the six judges in the âconservativeâ bloc either came from the judiciary branch or had prior
relevant experience within it.34
These differences between Supreme Court justices have acquired unprecedented relevance
in recent years for the reasons already discussed â the Court is starting to play an
unprecedented and increasing political role â but above all because in the last five years,
the floodgates of decentralized constitutional review have been opened. The path by which
these reforms were made possible will be covered in a moment, but even now we can see
that the result of the âdispute over the lawâ being waged within the Supreme Court will
have a decisive impact on the notions of law and justice of the (new) constitutional judges
33 For example, selecting an exemplary topic like the termination of pregnancy, at least one of the conservative justices (Franco) has voted to decriminalize it; on the other hand, it appears likely that at least one of the liberals (GutiĂ©rrez OrtĂz Mena) would vote against it. 34 Margarita Luna Ramos, PĂ©rez DayĂĄn, Luis MarĂa Aguilar, Pardo Rebolledo had judicial careers, Sergio Valls had a predominantly political career but was previously a Judge on the Court of Justice of Mexico City as well as Counselor of the Judiciary, while Fernando Franco also had a political career but was President of the Electoral Tribunal from 1990 to 1996.
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and accordingly â if the hypotheses discussed in this text are accurate â could define the
success or failure of the Mexican constitutional state.
7.1. From concentrated to decentralized review of conven-constitutionality
In 2009, the Inter-American Court of Human Rights (IACtHR), in the case of Radilla
Pacheco v. Mexico, found against Mexico, holding, inter alia, that all Mexican judges were
required to perform âconventionality controlâ on the basis of the American Convention on
Human Rights and the interpretations made by the Inter-American Court thereof. This
ruling laid the foundation for the decentralization of judicial review in Mexico. In 2010, in
response to the decision of the inter-American judges, a majority of Supreme Court
justices rejected the IACtHRâs decision, arguing that IACtHR decisions only constituted
âguiding principlesâ for Mexican judges. The Court majority also reiterated that judicial
review in Mexico was of a centralized character.
However, in June 2011 an ambitious constitutional reform concerning human rights was
adopted, along with an earlier reform in amparo proceedings (individual appeals to the
Court). One of the key features of the reform, enshrined in Article 1 of the Constitution,
lies in two specific sentences: âIn the United States of Mexico all persons shall enjoy the
rights recognized by the Constitution and international treaties to which the Mexican State
is a partyâ and ânorms governing human rights shall be interpreted in accordance with the
Constitution and international treaties.â In light of these provisions, this decision of the
IACtHR in the Radilla case gained renewed strength and meaning.
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In fact, the reform led the Supreme Court to reconsider its position regarding the IACtHrâs
ruling and in October 2011, a new majority of justices â made up of those who had been in
the minority in 2010, plus two justices who changed their position in light of the new
constitutional framework â recognized the binding nature of IACtHR judgments (in cases
to which the Mexican State was a party), holding that all Mexican judges had the
obligation to perform ex officio conventionality control as the international court had
ordered (Case No. 912/2010). 35 With that decision, the Mexican justices had finally
opened the door for decentralized judicial review of statutes for accordance not only with
the Constitution but also the American Convention.
However, as might be inferred from the existence of the two blocs within the Court, the
debate was not closed, nor differences of opinion permanently resolved. Some
conservative courts and justices continued to issue rulings contrary to the 2011 decision.36
This provoked sharply divergent holdings and open jurisprudential contradictions.37 The
severity of the dispute was observed by Justice CossĂo and by one of his secretaries, Raul
MejĂa:
35 â339 .... In other words, the judiciary must exercise ex officio "constitutionality control" between domestic laws and the American Convention, clearly within the scope of their respective competences and relevant procedural regulations. In performing this task, the judiciary must take into account not only the treaty, but also the interpretation made by the Court thereof, the ultimate interpreter of the American Convention." Inter-American Court of Human Rights, Case of Radilla Pacheco v. Mexico. Preliminary Objections, Merits, Reparations and Costs. Judgment of November 23, 2009. Series C, No. 209. 36 The tone of the debate was heated, to say the least. One justice, Luna Ramos, even claimed that the position of half of her peers that international treaties on human rights had constitutional status was âtreason.â This statement was made in the city of Morelia, MichoacĂĄn during a conference on August 9, 2013. Some journalistic accounts of and commentaries on her comments can be found at: http://www.quadratin.com.mx/principal/Traicion-a-la-patria-comparar-tratados-internacionales-con-Constitucion/ and at http://m.eluniversal.com.mx/notas/articulistas/2013/08/66155.html. 37 The most significant were between two circuit courts and between the two Chambers of the Supreme Court. Both were discussed in September 2013.
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â. . . a different understanding of and approach to cases depending on which court has previously reviewed the case submitted to it . . . . These are not minor differences and, magnified in the lower courts, may generate an image of interpretive disorder with potentially negative effects on specific cases and therefore on individuals. It is one thing for trial courts hearing concrete cases to disagree over how to resolve certain issues, disagreements which can ultimately be resolved on appeal as cases rise to courts of final interpretation. It is quite another thing when the latter are the ones who have a difference of opinion that causes lower courts to decide in inconsistent ways depending on the subject matter and the appeals court that reviews their decisions.â38
In September of 2013, the Supreme Court had to consider these contradictory lower
holdings concerning two specific issues â what is the place of international human rights
norms in the Mexican legal system?, and what is the reach of IACtHR judgments? A
majority of the Court decided that in essence, all human rights norms contained in
international treaties signed by Mexico had the status of constitutional norms and that all
judgments of the IACtHR (even in cases where Mexico was not a party) were binding on
all national judges. The first decision was reached by a controversial compromise that
managed to attract 10 votes,39 while the second passed with a narrow majority of six votes
to five.
What interests us here is that, with this decision the distinction between constitutionality
and conventionality was eliminated because since then, there has been only one parameter
for considering the validity of the norms of the Mexican legal system (compliance with the
38 CossĂo,. J. R., R. MejĂa, âDerechos descafeinadosâ in Nexos, June 2013. 39 The decision of the Supreme Court was also very controversial because it also held that when the Constitution establishes an explicit restriction on the exercise of a right the Court would hold to what the constitutional provision indicates. The point is relevant and interesting but is not the subject of this paper, and so I will not go into it. However, it was that point which prompted the Minister CossĂo to refuse to join the majority.
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constitution and human rights norms originating the Convention). Secondly, the power of
judicial was extended to all judges,40 capping off a trend that had already begun to be
observed in Case No. 912/2010:
âWhile judges cannot make general statements about the invalidity of, nor expel from the legal order norms they consider contrary to the human rights contained in the Constitution and treaties (as happens in the direct lines of scrutiny set out in articles 103, 107 and 105 of the Constitution), judges are in fact required to stop applying these inferior norms and give preference to the contents of the Constitution and treaties in this field.â
From this point on, all Mexican judges are constitutional judges. Are these judges who fit
the profile outlined by the hypotheses discussed in this essay? The question falls under its
own weight. Unfortunately we do not have enough empirical studies to be able to answer it.
One of the few studies aimed at measuring conceptions of law and the rights of judges was
published by Karina Ansolabehere in 2008. In this essay, we have already referred to and
employed her distinction between âlegalistâ or âguarantistâ judges.41 The study did more
than just analyze judges, which allowed the author to conclude the following:
âWe observe that judges are moderate legalists. With greater interpretive freedom in applying the law, they adopt a less legalistic framework than those who are guarantors of the proper application of legal processes: government agencies and trial lawyers, who make efficient use of the law to defend their clientsâ interests. . . .
40 In fact, Article 1 of the Law of Amparo provides: âArticle 1. The amparo proceeding seeks to resolve any dispute that may arise: . . . III. Under domestic laws, acts or omissions of an authority that violate recognized human rights and the guarantees provided for the protection of the individual under the Constitution of the United Mexican States and by international treaties to which the Mexican State is a party.â 41 Ansolabehere interviewed 10 judges in Mexico City as well as other legal professionals (public officials, attorneys, professors).
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The median representative, median judge, the median teacher, the median lawyer and the median public agency are actors with legalistic ideas of law . . . . With the sole exception of teachers, among whom ideas about the notion of human rights are closer to a legalistic model compared with the legal philosophy of the teachers as a group, the other groups exhibited slightly less legalistic ideas about human rights than might have been expected. We found three groups of moderate legalists: representatives, judges and lawyers. And two groups that we can characterize as plain legalists: teachers and government agencies.â42
It is encouraging to note that â assuming that the results of the study are generalizable â
judges are not the legal actors with the most legalistic views of law and rights, although I
fear that the bulk of Mexican judges are far from satisfying the model of the constitutional
judge outlined by AguilĂł and the hypotheses developed in this essay. This suspicion is
based upon the following: a) judges in Mexico have operated for decades under the logic
of the legal rule of law, b) the concentrated model of constitutional review has inhibited
lower court judgesâ argumentative and interpretive capacities, c) even in the Supreme
Court itself, a conservative tendency unfavorable to the rights agenda prevails, d) the vast
majority of judges in Mexico (including the majority of Supreme Court justices) built their
careers in the time of Mexican authoritarianism.
If all this is true, we are in trouble. Decentralized constitutional review in Mexico could
become the nightmare that Sergio GarcĂa RamĂrez, Mexican jurist and former President of
the IACtHR, encapsulated with a troubling metaphor: âit is a locomotive, powerful and
impressive, designed to reach high speeds but for which there are no rails. . . .â
42 Ansolabehere, K, âLegalistas, legalistas moderados y garantistas moderados: ideologĂa legal de maestros, jueces, abogados, ministerios pĂșblicos y diputadosâ, op. cit., p. 347, 351, 353.
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The warning, as we can see, lies not in the field of theory. It does not raise the same
concerns that motivated Burt in The Constitution in Conflict. It is simpler, more childish,
even. It does not insist that judges should take on a power that breaks with the principle of
equality and play a role that they shouldnât. It simply warns that Mexican judges are not
equal to the task asked of them. The serious, the truly worrisome part, is that they are not at
a time when, for better or for worse, institutional changes requiring them to do so are
taking place. So if GarcĂa RamĂrez is right, in a few years, analyzing the future holdings of
the current Mexican judges, someone in Mexico may have to write a book called The
Constitution in Crisis.